D.B. Basnett (D) Thr. Lrs. vs The Collector & Anr. East District, Gangtok, Sikkim & Anr.

HELD : 1. The question is whether the process of acquisition had been followed in accordance with law. No notification has been shown to this Court of the intent to acquire land under Section 4 of the Sikkim Land (Requisition and Acquisition) Act, 1977, or any other declaration thereafter. In fact what is claimed before this Court, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. This Court has also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if it is looked at the year of acquisition. This Court even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of the father of original appellant is no doubt a no-objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of the father of the original appellant to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/respondent No.1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence. [Para 13][520A-G]

2. Even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed. [Para 14][520-G]

3. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 1894 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful. The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed. [Para 15][521-A-B]

4. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. This Court is strengthened in its observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy, where it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published. [Para 19][525-A-C]

5. This Court, however, would like to give some time to the respondent-State to analyse the consequences of this judgment, and, in case they so desire, to acquire the land through a proper notification under the said Act, and to take proper recourse in law so as to enable them to keep the land. This Court grants three (3) months’ time from the date of the judgment for the respondent-State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification, or would they like to surrender possession of the land. In either eventuality, the question of payment for use and occupation would still arise, which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner, to be appointed by the trial court, as a relief in that behalf has been sought in the plaint itself. [Para 20][525D-E]

Vidya Devi v. The State of Himachal Pradesh & Ors. (Judgment dated 08.01.2020 in C.A.Nos. 60-61 of 2020 decided by the Supreme Court of India) – relied on.

N. Padmamma & Ors. v. S. Ramakrishna Reddy & Ors. (2008) 15 SCC 517; Narinderjit Singh & Ranjit Singh & Ors. v. State of U.P. & Ors., etc. (1973) 1 SCC 157; Lao v. M. Ramakrishna Reddy (2011) 11 SCC 648 – referred to.